EXHIBIT 10.1
FOURTH MODIFICATION AGREEMENT
This Agreement is entered into effective as of this 29th day
of December 1998 between 1900 Associates L.L.C., a Kansas limited
liability company ("Landlord"), and Xxxxx Xxxxxxxxxxx Company
(formerly known as Xxxxx, Inc.), a Delaware corporation
("Tenant").
RECITALS
A. Parkway Partners, L.L.C. ("Parkway") and Tenant entered
into that certain Commercial Building Lease dated December 21,
1994 (the "Original Lease"), as amended by (i) that certain First
Modification and Ratification of Lease dated February 26, 1996,
(ii) that certain Second Modification and Ratification of Lease
Agreement dated April 28, 1997 and (iii) that certain Third
Modification and Extension Agreement dated November 3, 1998 (the
Original Lease, as amended, to be referred to as the "Lease").
B. Landlord assumed all of Parkway's right, title and
interest and obligations in, to and under the Lease as of
December 30, 1998; and
C. Landlord and Tenant desire to amend the Lease as
provided herein.
NOW, THEREFORE, in consideration of the mutual
consideration set forth in this Agreement, Landlord and Tenant
agree as follows:
1. RENEWAL OPTION. The Lease is hereby amended to grant
Tenant a renewal option as follows:
(A) Provided that Tenant is not in default beyond any
applicable period to cure at the time from the
exercise of the option until the expiration of the
Extended Term, Tenant shall have an option to
renew this Lease for one (1) additional term of
three (3) years (the "Renewal Term"), exercisable
by giving Landlord written notice of the exercise
by not less than 360 days before the expiration
of the Extended Term (the "Expiration Date").
The Renewal Term shall be on the same terms,
covenants and conditions as set forth in the
Lease with respect to the Extended Term,
except that the Minimum Annual Rental (the "MAR")
payable during the Renewal Term shall be computed
as herein provided.
(B) For the Renewal Term, MAR shall be computed as an
amount equal to the greater of (i) Five Hundred
Seventy-Two Thousand Eight Hundred Thirty-Eight
Dollars ($572,838) per annum and (ii) ninety
percent (90%) of the then prevailing Market
Rate (as hereinafter defined) of the Leased
Premises, as if vacant with the then existing
improvements, based on its use as general
office space, and for comparable office buildings
in the Kansas City metropolitan area, adjusting
the Base Year Operating Expenses to mean
Operating Expenses incurred during calendar year
2005. In determining Market Rate, the parties
shall also take into account the condition of
the Leased Premises at the commencement of the
Renewal Term, the length of the Renewal Term,
Tenant's obligation to pay its proportionate
share of increases as herein provided, the
absence of any obligation of Landlord to
provide any tenant improvement to the Leased
Premises for the Renewal Term, and such other
factors as are relevant in the opinion of the
party making such determination.
(C) The term "Market Rate" shall mean the rate per
square foot of rentable area then being quoted
for comparable office buildings with the
characteristics noted in paragraph 1(B) above.
If the parties do not agree upon the Market
Rate within thirty (30) days after Tenant
exercises its option to renew, each party
shall choose a "Qualified Appraiser" who shall
make such determination on its behalf and submit
the same to the other party (together with the
information forming the basis for such
determination) within seventy-five (75) days
after Tenant exercises its option to renew
(with each party paying the fee for its own
appraiser). "Qualified Appraiser" shall mean
an appraiser who is independent, licensed and
a member of the American Institute of Real Estate
Appraisers (the "AIREA"). Unless the two
Qualified Appraisers agree to the Market Rate
within fifteen (15) days following delivery of
the last of the two appraisals, the two Qualified
Appraisers shall choose a third Qualified
Appraiser and notify Landlord and Tenant of such
choice. Each party shall share equally the cost
of the third Qualified Appraiser. If the two
Qualified Appraisers cannot or do not agree on
the choice of a third Qualified Appraiser within
ten (10) days following expiration of the
immediately preceding fifteen (15) day period,
the third Qualified Appraiser shall be selected
by the most senior officer of the Kansas City
Chapter or branch of the AIREA or its successor,
or if there shall be no successor, a professional
organization having a function, standards and
qualifications similar thereto. Within thirty
(30) days after his or her appointment, the third
Qualified Appraiser shall determine the Market
Rate of the Leased Premises, in the condition
as specified in paragraph 1(B) and taking into
account the factors specified in paragraph 1(B),
by selecting as such Market Rate either the
Market Rate proposed by Tenant's Qualified
Appraiser or the Market Rate proposed by
Landlord's Qualified Appraiser, and submitting
such determination to each party in writing.
(D) Based on said third Qualified Appraiser's
determination, Landlord and Tenant shall promptly
thereafter execute a written agreement
establishing the aforesaid MAR, which shall be
binding upon the parties commencing with the
first year of the Renewal Term.
2. OTHER TERMS. Except as modified herein, all other
terms and conditions of the Lease shall remain unmodified
and in full force and effect.
The parties have executed this Agreement effective as of the
date indicated above.
1900 ASSOCIATES L.L.C., XXXXX XXXXXXXXXXX COMPANY
a Kansas corporation a Delaware corporation
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx Xxxxx Name: Xxxxx X. Xxxxxx
Title: Manager Title: Vice President
